PREM SINGH v. DIRECTOR OF IMMIGRATION

FAMV No. 3 of 2002

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 3 OF 2002 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACV NO. 260 OF 2001 )

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DETERMINATION

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Mr Justice Bokhary PJ:

1. The question of whether the applicant should be treated as having applied on the 24 October 1998 for Hong Kong permanent resident status is a question worthy of the Court of Final Appeal's consideration. That raises the question of the constitutionality of para. 1(5)(b) of Schedule 1 to the Immigration Ordinance, and it is common ground that that question is an arguable constitutional question.

2. Turning to the question of imprisonment, a number of sub-questions may be said to arise. These are: (1) does de minimis apply? (2) if so, is two weeks de minimis? (3) failing (1) and/or (2), must the imprisonment be substantial? and (4) if so, is two weeks substantial in this context?

3. The broad question of imprisonment has to be considered by the Court of Final Appeal, and we do not by identifying those sub-questions mean to confine the way in which the broad question is to be approached. We merely state them to give some indication of the nature of the question and the arguments thereon as foreshadowed in the course of this leave application.

4. In the result, we grant leave to appeal to the Court of Final Appeal on the question of the constitutionality or otherwise of para. 1(5)(b) and on the imprisonment argument.

Representation:

Ms Audrey Eu SC and Mr Kwok Sui Hay (instructed by Messrs Barnes & Daly and assigned by the Legal Aid Department) for the applicant

Mr Joseph Fok SC and Mr Daniel HT Wan (instructed by the Department of Justice) for the respondent